Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21175/93

by Patricia WHEELER

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 30 June 1993, the following members being present:

MM. F. ERMACORA, Acting President of the First Chamber

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

Mrs. M.F. BUQUICCHIO, Secretary to the First Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 26 June 1992 by

Patricia Wheeler against the United Kingdom and registered on

20 January 1993 under file No. 21175/93;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British and Irish citizen born in 1941 and

resident in London.

The facts as submitted by the applicant may be summarised as

follows.

The applicant and her husband adopted a seven year old daughter

M.(born 3.10.75) who had a history of suspected sexual abuse by her

natural father.

The applicant alleges that M. exhibited problems of fantasising

in respect of which they consulted an educational psychologist. During

1990, behavioural problems became evident (eg lying, stealing, poor

school record) and an appointment was made for M. at the Bloomfield

Clinic. The applicant notified the family's social worker that M. had

alleged that A. the teenage son of the family had sexually abused her.

The applicant disbelieved these allegations. M. continued to repeat

these allegations. The social worker considered them credible and child

protection procedures were commenced.

A. was arrested by the police and interviewed. No charges were

brought and A. was released. The social services of the local authority

were concerned at the difficult situation developing between M. and the

applicant (the applicant had allegedly told M. at one point that she

could not return home unless she made a written statement for her) and

in particular the need for M. to receive counselling.

The applicant who had informed the social services that she no

longer intended to co-operate with them instituted wardship proceedings

on 9 November 1990 on the basis that M. required protection from the

local authority who were threatening to remove her from her parents'

care for further unnecessary enquiries which could possibly damage her.

On 5 December 1990 M. was made a ward of court.

On 26 February 1991, the High Court committed M. to the care of

the local authority who had leave to place her in residential

accommodation. This ex parte application was made in response to M.

placing herself voluntarily in the care of the local authority and

refusing to go home. M. was placed initially in a residential

children's home. The applicant was granted reasonable access to be

supervised if M. wished.

The applicant was concerned that M. was in moral danger in the

home due to lack of proper supervision and made statements to the local

press. On 7 March 1991 the High Court on ex parte application by the

local authority issued an injunction to restrain anyone from publishing

or broadcasting information identifying M., her address, educational

establishment etc. An article later appeared in the press referring to

the case of an unnamed minor and to the allegations of a lack of proper

supervision.

In November 1991 the applicant applied for the wardship to be

discharged. The social services applied for a care order in respect

of M.

During this period and until March 1992, the applicant was not

informed of the address of the foster carers of M. though she was given

the telephone number and able to correspond through the social services

department.

The matter came before the High Court on 11 February 1992. The

applicant was present but not represented by counsel. The Official

Solicitor acting as guardian ad litem for M. had made a report to the

court in which he found it difficult to envisage M. returning home in

view of her troubled relationship with the applicant. The attached

psychiatric report doubted that M. had accepted her adoptive parents

as parent substitutes. The judge expressed doubts whether the local

authority had proved its case for a care order and commented that they

could not have a care order merely because the parents were impossible.

He adjourned the case briefly. Following the adjournment the social

services announced that they abandoned the application for a care

order and reached agreement with the applicant on a draft consent

order. The judge proceeded to order by consent that M. remain a ward

of court, that she continue to reside with her foster mother, that the

applicant have reasonable access subject to M.'s wishes, that M. be at

liberty if she wished to return home for staying access or for a trial

period and that M. receive such counselling as might be arranged by the

social services in consultation with the Official Solicitor.

The matter came back before the judge on 27 March following a

dispute by the applicant as to the meaning of the consent order and her

complaint that the social services were counselling M. not to go to see

her parents. The judge clarified that he had not given care and control

to the applicant though she continued to have parental responsibility

within the meaning of the Children Act 1989. He referred to letters

written to the Official Solicitor by M. in which she asked him to stop

her parents' behaving as they do and stating that they never listened

to her and that she refused to go to their house since they always

twisted her words round. To put the matter beyond doubt the judge gave

interim care and control to the local authority.

COMPLAINTS

The applicant complains under Article 8 of the Convention of the

unjustifiable removal of M. from their home, the prevention of private

access and correspondence with her, the arrest of A., the invasions of

family privacy resulting from the involvement of the social services

and police and the compulsory psychiatric examinations of M.

The applicant complains under Article 6 of the Convention that

she did not attend the ex parte hearing of 26 February 1991 when M.'s

removal into care was ordered and also that M. did not attend.

The applicant complains under Article 10 of the Convention of the

injunction issued by the Court which prevented all information

concerning the case from reaching the public domain.

The applicant further complains that she has no effective remedy

in respect of her complaints.

THE LAW

1. The applicant has complained in the context of Articles 8 and

6 (Art. 8, 6) of the Convention that M. was unjustifiably removed into

care in an ex parte procedure at which she and M. were not present.

The Commission however is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of this provision as under Article 26 (Art. 26) of the

Convention, it may only deal with a matter after all domestic remedies

have been exhausted according to the generally recognised rules of

international law.

In the present case the applicant did not appeal against the ex

parte order or apply to the High Court for the order to be set aside

and therefore has not exhausted the remedies available to her under

English law. Moreover an examination of the case as it has been

submitted does not disclose the existence of any special circumstances

which might have absolved the applicant, according to the generally

recognised rules of international law, from exhausting the remedies at

her disposal.

It follows that the applicant has not complied with the condition

as to the exhaustion of domestic remedies and these complaints must in

this respect be rejected under Article 27 para. 3 (Art. 27-3) of the

Convention.

2. The applicant has also complained under Article 8 (Art. 8) of the

Convention about the intrusions into her family life occasioned by the

actions of the police and social services, refusal of private access

and correspondence and the compulsory psychiatric examinations of M.

Article 8 (Art. 8) of the Convention provides:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society in the interests of national security, public

safety or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of

health or morals, or for the protection of the rights and

freedoms of others."

The Commission recalls that the involvement of the police and the

social services resulted from very serious allegations made by M. of

sexual abuse from a member of the family. Insofar as the subsequent

child protection procedures can be said to constitute an interference

with the applicant's right to respect for her family life, the

Commission finds on the facts of the case that such interference was

"in accordance with the law" and "necessary in a democratic society"

for protecting the health and rights of M. The Commission further notes

that the applicant has not been refused access but that the social

services and the courts have given priority to M.'s wishes. The

Commission considers that the policy of respecting the expressed wishes

of a minor over the age of fifteen has not been shown in the

circumstances of this case to be arbitrary or unreasonable.

It follows that these complaints are manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3. The applicant complains of the injunction issued by the High

Court prohibiting the publication of all the facts of the case. She

invokes Article 10 (Art. 10) of the Convention which provides as

follows:

"1. Everyone has the right to freedom of expression. This

right shall include freedom to hold opinions and to receive

and impart information and ideas without interference by

public authority and regardless of frontiers...

2. The exercise of these freedoms, since it carries with

it duties and responsibilities, may be subject to such

formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic

society, in the interests of national security, territorial

integrity or public safety, for the prevention of disorder

or crime, for the protection of health or morals, for the

protection of the reputation or rights of others, for

preventing the disclosure of information received in

confidence, or for maintaining the authority and

impartiality of the judiciary."

The Commission recalls that the applicant was unable to have the

full facts of M.'s case published in the press as a result of the court

injunction. It finds that this discloses an interference with her

rights under the first paragraph above and has therefore examined

whether the requirements of the second paragraph have been complied

with.

The Commission recalls that the injunction was issued by the High

Court in the exercise of its wardship jurisdiction and that it

prohibited the publication of any material which would lead to the

identification of M. It did not prohibit the publication of the other

facts and details of the case, in particular, the applicant's concern

over the lack of proper supervision in the children's home. The

Commission concludes that the interference in this case was prescribed

by law and justified as necessary in a democratic society for the

protection of M.

It follows that this complaint is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

4. Finally, the applicant complains of the absence of an effective

remedy in violation of Article 13 (Art. 13) of the Convention which

provides:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy

before a national authority notwithstanding that the

violation has been committed by persons acting in an

official capacity."

The Commission recalls however that Article 13 (Art. 13) does not

require a remedy under domestic law in respect of any alleged violation

of the Convention. It only applies if the individual can be said to

have an "arguable claim" of a violation of the Convention (Eur. Court

H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p.23,

para. 52).

The Commission finds that the applicant cannot be said, in light

of its findings above to have an "arguable claim" of a violation of her

Convention rights.

It follows that this complaint must be dismissed as manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber Acting President

of the First Chamber

(M.F. BUQUICCHIO) (F. ERMACORA)

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WHEELER v. THE UNITED KINGDOM

WHEELER v. THE UNITED KINGDOM